Danielle McDevitt Versus Michael Salisbury ( 2023 )

DANIELLE MCDEVITT NO. 22-C-534 VERSUS FIFTH CIRCUIT MICHAEL SALISBURY COURT OF APPEAL STATE OF LOUISIANA February 28, 2023 Linda Wiseman First Deputy Clerk ON APPLICATION FOR REHEARING Panel composed of Jude G. Gravois, Stephen J. Windhorst, and Hans J. Liljeberg REHEARING GRANTED; RELIEF DENIED WITH REASONS SJW JGG HJL WINDHORST, J. Relator, Danielle McDevitt, seeks a partial/limited reconsideration relative to this Court’s granting of her writ application number 22-C-534. Relator challenges the trial court’s ruling on a motion for contempt and a motion for new trial during the pendency of her writ application number 22-C-442 regarding the trial court’s denial of her motion to recuse Judge Nancy Miller because this court ultimately granted her writ application. Specifically, on September 20, 2022, this court granted relator’s application for a supervisory writ in number 22-C- 442, and instructed the judge to “either consider the merits of the relator’s motion to recuse and render a judgment in compliance with La. C.C.P. art. 154 or to make a written request to the supreme court for the appointment of an ad hoc judge as provided in La. C.C.P. arts. 154 and 155.” Relator questions the trial court’s authority to rule on the motion for contempt and the motion for new trial while the motion to recuse is pending.1 La. C.C.P. art. 155 provides: Once a motion that sets forth a ground for recusal under Article 151 is referred for hearing, the supreme court shall appoint an ad hoc judge to hear the motion to recuse, and only the ad hoc judge to whom the motion is assigned shall have the power and authority to act in the cause pending disposition of the motion. The language of this article indicates that, once a motion to recuse has been filed, the trial judge, who is the subject of the motion to recuse, maintains the authority to act in the case until the supreme court has appointed a judge ad hoc to hear the motion to recuse. This matter was “referred for hearing” on January 10, 2023, and on January 19, 2023, the Supreme Court appointed a judge ad hoc for the purpose of hearing 1 Although relator refers to other actions of the trial judge since the motion to recuse was filed, the notice of intent to file supervisory writs in this writ application only references the trial court’s September 21, 2022 ruling on the motion to recuse and September 23, 2022 rulings on the motion for contempt and motion for new trial. 22-C-534 1 and disposing of the motion to recuse Judge Nancy Miller.2 Thus, on September 23, 2022, when the trial judge ruled on the motion for contempt and the motion for new trial, the trial judge whose recusal is sought had the authority to act in this matter. We therefore deny relator the relief requested in this application for rehearing. 2 A hearing on the motion to recuse was held before the judge ad hoc on February 16, 2023. The matter was taken under advisement, and no ruling has been rendered. 22-C-534 2 SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400 (504) 376-1498 FAX www.fifthcircuit.org NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 02/28/2023 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW: 22-C-534 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable Nancy A. Miller (DISTRICT JUDGE) Shaye R. Lirette (Relator) MAILED Michael Salisbury (Respondent) In Proper Person 39 Emma Street Binghamton, NY 13905